Scott v. Access Services, et al.

the Court declined to grant Burk's motion because Burk did not establish that he was the only beneficiary of the trust. Burk has addressed that defect and presented evidence to support his claim. (Burk Decl., P. 6, Ex. B.) Thus, Burk may proceed with Plaintiffs' case to represent the interests of 5721 Trust in propria persona.

Conclusion

Plaintiff Gerry Burk's motion for leave to file an FAC is denied. Plaintiff Gerry Burk's motion to allow him to represent 5721 Trust in propria persona is granted.

Department 516 Hearing Date: August 27, 2026 Case Name: Scott v. Access Services, et al. Case No.: 24STCV33728 Matter: Motion For Relief from Mistake, Inadvertence, Surprise, Or Excusable Neglect Under Code of Civil Procedure Sec. 473(b) Moving Party: Plaintiff Gwendolyn Scott Responding Party: Defendants Access Services and Global Paratransit, Inc. Tentative Ruling: Plaintiff Gwendolyn Scott motion for relief is denied.

Plaintiff Gwendolyn Scott ("Plaintiff") filed this action against Defendants Access Services ("Access"), Global Paratransit, Inc. ("Global"), County of Los Angeles ("County"), and Does 1 to 50 (collectively "Defendants"). The Complaint alleged two causes of action against Defendants for: (1) motor vehicle negligence; and (2) general negligence.

On October 15, 2025, Plaintiff dismissed her action against County. On March 26, 2026, the Court granted Defendants Access Services and Global Paratransit, Inc.'s unopposed motion for summary judgment. On March 27, 2026, the Court dismissed Plaintiff's action.

Plaintiff moves for discretionary relief pursuant to Code of Civil Procedure section 473, subdivision (b). Defendants oppose.

Legal Standard

Code of Civil Procedure section 473, subdivision (b) provides for either discretionary or mandatory relief from certain prior actions or proceedings in the trial court. (Luri¿v. Greenwald¿ (2003) 107 Cal.App.4th 1119, 1124.)¿¿ "'Under the discretionary relief provision, on a showing of "mistake, inadvertence, surprise, or excusable neglect,"¿the court has discretion to allow relief from a "judgment, dismissal, order, or other proceeding taken against"¿a party or his or her attorney.¿¿Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of "mistake, inadvertence, surprise, or neglect,"¿the court shall vacate any "resulting default judgment or dismissal entered."' [Citation.]

Applications seeking relief under the mandatory provision of section 473 must be 'accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.' The mandatory provision¿further adds that 'whenever relief¿is granted based on an attorney's affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs¿to opposing counsel or parties.'" (Ibid.; Code Civ. Proc., Sec. 473, subd. (b).)¿¿

Analysis

Plaintiff moves for discretionary relief pursuant to Code of Civil Procedure section 473, subdivision (b) on the grounds of mistakes, inadvertence, surprise, and excusable neglect. Plaintiff requests that the Court set aside the order granting summary judgment, and resulting judgment of dismissal, and set a new briefing and hearing schedule, or, in the alternative, grant Plaintiff relief from costs. (Mot., 3:18-21.)

Plaintiff contends that relief is warranted because Plaintiff's Counsel ("Counsel") failed to calendar the opposition deadline and the hearing date in relation to Defendant's motion for summary judgment was not calendared. (Gasparyan Decl., P. 6.) Counsel also asserts that an unexpected illness and a family emergency occurred. (Ibid.) Also, Counsel contends that she was not properly served. (Gasparyan Decl., P. 9, 13.) Counsel decalres that she did not learn about the Court's ruling until April 7, 2026. (Gasparyan Decl., P. 14.)

As an initial matter, the mandatory relief available under Code of Civil Procedure section 473, subdivision (b) is limited to a "narrow class of cases in which a default judgment or a dismissal has been entered." (Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 297, Las Vegas Land & Development Co., LLC v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086, 1091.) Plaintiff is barred from mandatory relief because she seeks relief by setting aside a summary judgment ruling.

The Court finds that Counsel has not met its burden under the discretionary prong. Plaintiff declares in a conclusory manner that she faced unexpected illness and a family emergency but does not provide any explanation as to how these two separate circumstances prevented her from filing an opposition or attending the hearing on the motion for summary judgment.

Furthermore, the cases Plaintiff relies on to support her claim that discretionary relief is unavailing. In Elston v. City of Turlock (1985) 38 Cal.3d 227, the court reviewed the trial court's decision to deny Code of Civil Procedure section 473 to set aside deemed admissions on the ground of excusable neglect. (Id. at p. 231.) Similarly, Toon v. Pickwick Stages, Northern Division (1924) 66 Cal.App. 450 was regarding a motion to set aside the default, not a ruling on a motion for summary judgment.

"To grant discretionary relief, "the proffered evidence must show that the attorney's error was excusable." (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423.) "Relevant factors in assessing counsel error include: "(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim." [Citation.] "Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable." [Citation.] "To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice." (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423.)

Counsel argues that she was not properly served with the motion and notice of non-opposition because one of her paralegals was not served. (Gasparyan Decl., P.P. 3, 6.) However, the Court finds Counsel's argument unavailing. Counsel claims to take full responsibility for failing to oppose Defendants' motion for summary judgment, but at the same time blames lack of service as the basis for why she did not oppose. (Gasparyan Decl., P. 6.)

In opposition, Defendants contend that Counsel's arguments that she was not properly served are without merit because she was served and the Defendants updated the service list per Counsel and her staff's request. (Cheung Decl., P.P. 5-10, 13, Ex. A-G.) Most importantly, Counsel declares under penalty of perjury that she was served with Defendant's moving papers. (Gasparyan Decl., P. 3.) Counsel provides no specific details as to which paralegal was not served, which is the alleged cause for why she did not file an opposition.

Thus, the Court finds that Counsel's failure to oppose Defendants' motion for summary judgment does not warrant discretionary relief pursuant to Code of Civil Procedure section 473, subdivision (b).

In the alternative, Plaintiff requests that the Court to "grant relief of costs associated with the case, as the motion was brought very late into the Action and based on a legal issue." (Mot., 7:9-12.) The Court denies Plaintiff's request because she provides no legal basis to grant the relief she seeks or further argument that would warrant such relief.

Therefore, the Court denies Plaintiff's motion in its entirety.

Conclusion

Plaintiff Gwendolyn Scott's motion for relief pursuant to the discretionary prong of Code